Opinion
A113541
12-4-2006
In re SARA M., a Person Coming Under the Juvenile Court Law. [PG] CONTRA COSTA COUNTY DEPARTMENT OF CHILDREN & FAMILY SERVICES, Plaintiff and Respondent, v. L. M., Defendant and Appellant.
L.M., the mother of Sara M., appeals an order denying her Welfare and Institutions Code section 388 petition, and an order finding the minor adoptable, and terminating L.M.s parental rights. L.M. contends the court erred by (1) denying her section 388 petition without holding a full evidentiary hearing, and (2) failing to find the beneficial parent relationship exception set forth in section 366.26, subdivision (c)(1) applied to preclude termination of her parental rights.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
We shall not repeat in detail the facts relating to this dependency case through the 18-month review hearing. They are summarized in our unpublished writ opinion, L.M. v. Superior Court, A112942, filed April 4, 2006, which is part of the record on appeal.
Sara M. was born in June 2004, and tested positive for methamphetamine, which L.M admitted using during her pregnancy. Contra Costa County Department of Children & Family Services (the Department) filed a section 300 petition, alleging that L.M. had a chronic drug abuse problem that impaired her ability to care for Sara and that she had two other children removed from her custody due to her drug abuse. Sara was detained, and the court entered a dispositional order requiring L.M to participate in individual counseling, residential drug treatment and after care services, submit to random drug testing, complete a parenting course, and establish a " safe, stable drug-free home with adequate food and provisions."
At the contested six-month review, Sara was in a foster home where she was making good progress, and the foster family wanted to adopt her. L.M. had only visited Sara twice in the six-month review period. The court found that L.M. had made partial progress toward reunification. The court ordered reunification services be continued up to the 12-month review date, and continued supervised visitation.
At the contested 12-month review hearing, L.M. had part-time work and was living in the Richmond Rescue Mission. She had completed drug treatment. Sara was now 14 months old and had had some serious health issues, probably caused by prenatal drug exposure, but was thriving in her foster care home. The court acknowledged L.M.s progress, but noted its disappointment with "how long shes taken to do everything." Nonetheless, it extended reunification services to the date of the 18-month hearing. It also adopted an updated plan requiring L.M. to demonstrate that she not only could house and support Sara, but also that she could arrange child-care, and had a stable source of income.
At the 18-month review hearing, L.M. did not have suitable housing but proposed that she could move to Humboldt County to reside with her father and stepmother. According to L.M., they were willing to have L.M. move in and to provide child-care for Sara. After one month, L.M. had lost the job she had obtained just prior to the 12-month review hearing due to unsatisfactory performance. Only days before the 18-month hearing she obtained a part-time job at a fast food restaurant and was to start the next day. She had recently progressed to unsupervised visits with Sara. Although the court had authorized overnight visitation at the 12-month review, none had been arranged because L.M. did not have suitable housing. Shortly before the hearing she had applied for suitable housing and for child-care. L.M.s place in transitional housing suitable for Sara was contingent upon maintaining her employment.
The court stated that L.M.s efforts came too late and were not enough, and terminated reunification services. It set a section 366.26 hearing, and adopted an updated case plan recommending a permanent plan of adoption. L.M. filed a writ petition, which this court denied on the merits. (L.M. v. Superior Court, supra, A112941.)
On the day set for the section 366.26 hearing, L.M. filed a section 388 petition for modification of the prior court order terminating reunification services and setting a section 366.26 hearing. The petition asked the court to return Sara to L.M. under a family maintenance plan, because L.M. "has had full-time employment [for approximately three months] and is able to pay her $150 monthly service fee for her transitional housing, where she will be able to stay for one year. She has maintained all scheduled visitation with Sara and both she and Sara look forward to and enjoy the visits." The petition further alleged that a family maintenance plan would be in Saras best interests because "[i]t is better for the child to be raised by her birth mother so that she doesnt have to wonder when she gets older where her birth family is and why shes not living with them. Sara knows and is happy to see her mother, so the change in placement would not be damaging to her."
The court denied the petition. It found that "[a] few months at a full-time job doesnt show that shes going to keep that." It further stated that there was no documentary evidence attached to the petition to support the allegation that she had a job or housing. The court also found speculative the assertion that granting the petition would be in Saras best interest to avoid problems she might face later in life arising from wondering why she was not raised by her birth mother, and was outweighed by the benefits of remaining in a stable and permanent home.
The section 366.26 report stated that Saras overall health was good, but she had some developmental delays. Saras foster mother had a masters degree in special education and was attending to Saras special needs on a daily basis. Saras foster mother had taught her sign language because of delays in language development. Sara had been in the foster home since she was five months old. She was happy, well cared for, and turned to her prospective adoptive parents for comfort and guidance. Her seven-year-old foster brother also was fond of her and hoped she would become his sister. The prospective adoptive family home had been approved in a home study. L.M. continued to visit Sara once a month. Sara and L.M. seemed happy to see one another and the visits were going well. The court found Sara to be adoptable, and found no statutory exception applied to preclude termination of parental rights. It terminated L.M.s parental rights, and those of Saras alleged natural father. L.M filed a timely notice of appeal.
Prior to the order setting the section 366.26 meeting, L.M. had been visiting Sara once a week. The court had ordered the visits reduced to once a month when it set the section 366.26 hearing.
ANALYSIS
I.
Denial of Section 388 Petition
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parents request. [Citation.] [¶] However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
L.M. contends that the court denied her section 388 petition without holding an evidentiary hearing, despite her prima facie showing that there was a change of circumstances, and that returning Sara to L.M would be in Saras best interests. To make a prima facie showing, however, a petition must do more than make conclusory assertions, unsubstantiated by any declarations or other documents. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250-251.) "Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence." (Id. at p. 250.) The "prima facie requirement is not met unless the facts alleged . . . would sustain a favorable decision on the petition." (In re Zachary G., supra, 77 Cal.App.4th at p. 806; see In re Alexis W. (1999) 71 Cal.App.4th 28, 36 [petitioner "has the burden of showing not only that circumstances have changed, but that [the proposed change] would be in the childs best interests"].) A prima facie showing of changing, as opposed to changed circumstances, "[is] not enough to require or justify a hearing." (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
The Department incorrectly asserts that the court actually held an evidentiary hearing, citing the courts statement that it was "going to proceed with the 388 today." The court made this statement after an objection that L.M had failed to give adequate notice. This statement reflected only that the court had concluded it was unnecessary to grant a continuance to allow the opposing parties time to prepare a response. In the ensuing argument, counsel for the Department urged that the court should not "even hear the factual basis behind the motion" because the petition failed to make a prima facie case, and later reiterated her position that L.M. was not "even entitled to a hearing on the merits." L.M. presented arguments but no evidence.
The petition cited the fact that L.M. had held a full-time job for approximately three months, and could now afford the $150 a month she needed to secure her place in suitable housing, as the "changed circumstances" warranting reconsideration and modification of the courts prior order finding returning Sara to L.M. would be detrimental. Yet she did not attach any documents or declarations to support these assertions. (See In re Anthony W., supra, 87 Cal.App.4th at pp. 250-251.) In any event, even if true, the three-month period of employment, and the ability now to afford suitable housing, did not demonstrate a change in circumstances that would warrant a change in the courts prior order. The court was aware of the record of L.M.s very sporadic work history and correctly noted, "[a] few months at a full-time job doesnt show that shes going to keep that." Moreover, this brief period of regular full-time employment did not address or change other critical factors underlying the finding in the courts prior order that return of Sara to L.M would create a substantial risk of detriment, such as the fact that L.M. had never actually cared for Sara, or even had overnight visitation with her. (See § 366.22, subd. (a).)
Even more important, the petition failed to make the requisite prima facie showing that undoing of the prior order would be in Saras best interests. The petition merely stated the conclusion that the proposed modification was in Saras best interest because she would not have to wonder about her birth family "when she gets older." This statement did not address Saras current best interests. As the court correctly observed, "[S]peculation about how important it is to a child to know who their birth parents are in no way shows that its in the childs best interest to go back to an unstable situation when there is a stable home that the child is currently living in." The fact that Sara was happy to see L.M. at visits could not outweigh, or mitigate, the obvious and immediate damaging effect of being placed in the care of a person she knew only through visits, and who had never actually cared for her, and of being removed from the stable home with caretakers she looked to for guidance and support. In contrast to periodic happy visits with L.M., Sara had been living with, and cared for by, her foster parents most of her young life. On a daily basis, they gave her love, guidance, and support, and had integrated her into their family. Her foster mother was attuned to, and well-equipped to respond to, Saras special needs, and had developed creative techniques, such as the use of sign language, to address them. As our Supreme Court has explained, "[A] primary consideration in determining the childs best interests is the goal of assuring stability and continuity. [Citation.] `When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
We conclude that no evidentiary hearing was required because the petition did not make the prima facie showing triggering the right to a full hearing. Nothing stated in the petition changed the sad circumstance that despite L.M.s. praiseworthy success in completing drug treatment and maintaining sobriety, and finally, after 18 months of failed reunification efforts, obtaining and holding a full-time job for several months, her efforts were too little and too late for Sara, who, at 22 months old, deserved a stable and permanent home. At that point in the proceedings, the childs interest in permanency and stability is the courts foremost concern, outweighing any interest the parent may have in reunification. (In re Anthony W., supra, 87 Cal.App.4th at pp. 251-252.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
II.
Beneficial Relationship Exception
L.M. does not dispute that the evidence at the section 366.26 hearing supports the courts finding that Sara was adoptable. Nevertheless, she contends that the court should have found that the exception set forth in section 366.26, subdivision (c)(1)(A), commonly described as the beneficial relationship exception, applied to prevent termination of her parental rights.
The parent bears the burden of demonstrating that the beneficial relationship exception applies. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) It is not enough to show that the child would receive some incidental benefit from a continued relationship with the parent. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The relationship must promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new adoptive parents. (Ibid.; see also In re Clifton B . (2000) 81 Cal.App.4th 415, 424-425; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) This is not an easy burden to meet. "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement." (In re Jasmine D., supra, at p. 1350.)
Although the courts have applied different standards when reviewing a juvenile courts rejection of the statutory exceptions enunciated in section 366.26, subdivision (c)(1) (see In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576 [substantial evidence test applies]; In re Jasmine D., supra, 78 Cal.App.4th at pp. 1351-1352 [abuse of discretion standard of review utilized]), we need not resolve the conflict, because we would affirm the juvenile courts termination order under either standard.
L.M. argues the court should have found the beneficial relationship exception applied because the record showed that her visits with Sara were always appropriate, that after the first six months of reunification she began and sustained regular visitation with Sara, and that Sara was always happy to see her. The existence of a friendly and appropriate record of visitation is simply not enough to establish the exception in section 366.26, subdivision (c)(1)(A). The parent must do more than demonstrate " `frequent and loving contact [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] Rather, the parents must show that they occupy `a parental role in the childs life." (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) L.M. had never done more for Sara than engage in friendly visitation. The relationship she had with Sara could not, and did not, outweigh the benefits to Sara of finally gaining a permanent and stable home with the caretakers who were well equipped to perform the role of parents and had successfully been doing so for most of her life.
CONCLUSION
The orders are affirmed.
We Concur:
SWAGER, J.
MARGULIES, J.